Gujarat High Court
Rajeshbhai Bhanabhai Patel vs Dharmenbhai Jinendrabhai Desai on 6 February, 2025
NEUTRAL CITATION
C/FA/3545/2012 ORDER DATED: 06/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3545 of 2012
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RAJESHBHAI BHANABHAI PATEL
Versus
DHARMENBHAI JINENDRABHAI DESAI & ANR.
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MR NIKUNT K RAVAL(5558) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 06/02/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant being aggrieved and dissatisfied with the judgment and award dated 24.2.2012 passed by the Motor Accident Claims Tribunal, Ahwa in Motor Accident Claim Petition No.94 of 2011.
2. The brief fact of the present appeal is such that the appellant on 24/02/2011 at 19:30 hours was returning from Valsad to Ahwa on his own Motorcycle No. GJ-15-Q-8763 by driving it in moderate speed and following the traffic rules. It is submitted that when he reached near Ashrma Shala between village Dhulchaud and Chikatiya, the respondent no.1 coming with his Motorcycle No. GJ-19-Q-9221 from opposite direction by driving it in rash and negligent manner and dashed with the Motorcycle of the appellant. It is submitted that due to the accident the appellant sustained serious fracture injuries on his Page 1 of 9 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Feb 06 2025 Downloaded on : Fri Feb 07 01:47:31 IST 2025 NEUTRAL CITATION C/FA/3545/2012 ORDER DATED: 06/02/2025 undefined right leg and also sustained the injuries on the various part of the body. The appellant received 24% disablement. Therefore, the appellant has prayed the compensation against the present respondent by way of filing a petition before the Motor Accident Claim Tribunal, Dangs at Ahwa to tune of Rs. 5,75,000/-.
3. Questioning the findings of the learned Tribunal attributing 75% negligency to the claimant in causing the road accident, learned advocate for the appellant would submit that the findings of the learned Tribunal is totally erroneous. He would further submit that in the present case, the accident took place between two vehicles having same nature. He would further submit that the learned Tribunal at more than once believed that the real facts cannot be found out, yet, the learned Tribunal, without assigning any reason, attributed 75% negligency to the claimant by simply stating the same in one line. He would further submit that the claimant and the original opponent No.1 entered into the witness box and therefore, principle of res ipsa loquitur cannot be taken into consideration, but the learned Tribunal.
3.1 Making above submission, learned advocate Mr. Modi prays this Court to interfere with the findings of the learned Tribunal in regards to attributing 75% negligency to the claimant in causing the road accident.
4. Per contra, learned advocate Mr. Raval would submit that the learned Tribunal referred to the evidence on record and specifically noted that the claimant was alighting the slope of road, naturally, speed of his vehicle was higher than the speed of Page 2 of 9 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Feb 06 2025 Downloaded on : Fri Feb 07 01:47:31 IST 2025 NEUTRAL CITATION C/FA/3545/2012 ORDER DATED: 06/02/2025 undefined vehicle driven by the original opponent No.1 and that aspect since rightly been appreciated by the learned Tribunal and attributed negligency of 75% - 25% upon the claimant and the opponent No.1, there is no reason to interfere with such findings of the learned Tribunal.
4.1 Upon such submission, learned advocate Mr. Raval prays to dismiss the First Appeal.
5. At the outset, let refer para 8,9,11 and 14 of the impugned judgment and award, which reads as under:-
"8. Copy of FIR filed by the claimant is on record at Mark 5/1/it shows that the applicant has filed the complaint against the opponent no.1, same is found in corroboration to the case in claim petition. Copy of Panchnama is on record at mark 5/2, while read-over the same, it reveals that it does not throw light on the case, there is gross negligence on part of investigation in showing the width of road, and place of accident among the particular side of the road. Thus on basis of panchnama nothing can be inferred. The factum of factum of accident cannot be doubted on basis of deposition of opponent no.1 as examined by the opponent no.2 as their witness at Exh. 36.
9. Upon reading the Panchnama, it reveals that there no clarity in it that, there is gross negligence on part of IO for that panchnama, he also failed to put the map of the place of accident. This failure is found in contravention of the guideline by Hon'ble Supreme Court of India. Thus lacuna for this aspect being on record for the exact position of both the vehicle, just prior to accident, I tried to find out reality as to mistake committed by driver of the vehicle amongst the claimant and opponent no.1, out of their cross- examinations. The deposition of Applicant is on record at Exh. 16, in para 9 of cross-examination this witness Page 3 of 9 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Feb 06 2025 Downloaded on : Fri Feb 07 01:47:31 IST 2025 NEUTRAL CITATION C/FA/3545/2012 ORDER DATED: 06/02/2025 undefined has admitted that he was downing the slop and in para 10 he also admitted that motorcycle coming from opposite direction was climbing the slope. Each of the driver has stated that he was with slow speed and accident was caused due to mistake of other side. However the situation when read with injury to opponent no.1 at his right leg shows more possibility that wheel of the motorcycle driven by the claimant was dashed with right lag. Here it is not explained before me that what sufficient reason was there with both the parties for not taking the Photographs of the place of accident showing the exact position of both the vehicle, now a days even Cell Phone are available and the video clip can be posed before the Tribunal for the exposition of the truth and attempt to fix the liability amongst the parties/owner of both the vehicle involved in the accident in just and reasonable manner. Thus there being no other evidence, on record, on plain reading of the Deposition of both parties, I am conclusion that driver of motorcycle downing the slope was fast and the driver of the motorcycle climbing the slope was slow and therefore both vehicle are required to be held responsible for the accident.
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11. In the case on hand claimant has not explained that though he was downing the slop how he could maintained the speed and though he alleged to have maintained the speed how accident was occurred? The maxim res ipsa loquitur is to be followed for the determining the controversial aspect and when the same is found within guidelines by Hon'ble Supreme Court of India, I find no reason to depart with the said guidelines. Thus cited case is found applicable to the case on hand.
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14. Thus, I am at conclusion that so far as rash and negligent driving, as discussed above both the Page 4 of 9 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Feb 06 2025 Downloaded on : Fri Feb 07 01:47:31 IST 2025 NEUTRAL CITATION C/FA/3545/2012 ORDER DATED: 06/02/2025 undefined vehicle involved being the Motorcycle and amongst them the applicant being downing the slope and failed to explained the circumstances of the case while the opponent no.1 as deposed at Exh.36 clearly shows that he also is required to be held responsible as he also failed to specify the exact place of accident on road more particularly in relation to exact side and distance amongst the road. Hence in the facts of the case I am at conclusion that applicant is to be held liable for contributory negligence for 75%, while opponent no.1 is to be held for contributory negligence for 25%. I decide this issue accordingly in the affirmative with clarification as above."
6. Bare perusal of the aforesaid findings of the learned Tribunal indicates that though the learned Tribunal speaks volume in regards to term " contributory negligence" did not assign any reason that why the claimant should be held 75% negligent and opponent No.1 is held 25% negligent in causing the road accident. Perhaps, the learned Tribunal while assessing contributory negligence is influenced by the findings of fact stated in case of T.O. Antony Vs. Karvarnan, (2008) 3 SCC
748. The error therefore, is explicit.
7. Reverting back to the case on hand, keeping in mind that drivers of both the vehicles involved in the road accident have deposed before the learned Tribunal and it could be visualized that the accident took lace while the claimant was alighting the slope of the road, whereas the original opponent No.1 was climbing the slope of the road. It is the case where one should draw that both are equally negligent in causing the road accident. The learned Tribunal considered the issue of contributory negligence on hypothesis that the vehicle, which was alighting the slope must be in excessive speed and therefore, Page 5 of 9 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Feb 06 2025 Downloaded on : Fri Feb 07 01:47:31 IST 2025 NEUTRAL CITATION C/FA/3545/2012 ORDER DATED: 06/02/2025 undefined the driver of it be held more negligent. Speed and negligency are two different things. Speed of a vehicle axiomatically cannot be treated as negligency. The issue of conntributory negligency is succinctly explained by the Hon'ble Apex Court in case of Prem Lal Anand And Others Versus Narendra Kumar And Others, 2024 (9) SCC 441. Relevant para reads as under:-
"11. At this stage, it would be appropriate to consider pronouncements of this Court on contributory negligence.
11.1 In Municipal Corporation of Greater Bombay vs. Laxman Iyer & Anr., (2003) 8 SCC 731 , this Court discussed the concept of negligence and its types, i.e., composite and contributory, in the following terms :-
"6...Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations, who ordinarily by reason of conduct of human affairs would do or be obligated to, or by doing something which a prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a degree of care as is required in particular circumstances. Negligence is failure to observe, for the protection of the interests of another person, the degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and duty are strictly correlative. Negligence means either subjectively a careless state of mind, or objectively careless conduct. Negligence is not an absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different Page 6 of 9 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Feb 06 2025 Downloaded on : Fri Feb 07 01:47:31 IST 2025 NEUTRAL CITATION C/FA/3545/2012 ORDER DATED: 06/02/2025 undefined conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. It is absence of care according to circumstances. To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a negligent act. Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of the other's negligence. ... Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. ... It is now well settled that in the case of contributory negligence, courts have the power to apportion the loss between the parties as seems just and equitable."
(Emphasis supplied)."
8. Finding fault with the learned Tribunal, assessment about contributory negligence of both the vehicle, I found that the claimant and the original opponent No.1 are equally negligent in causing the road accident. Another fault of the learned Tribunal can be noticed that the learned Tribunal has ignored the aspect Page 7 of 9 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Feb 06 2025 Downloaded on : Fri Feb 07 01:47:31 IST 2025 NEUTRAL CITATION C/FA/3545/2012 ORDER DATED: 06/02/2025 undefined that both the vehicles are of same nature and accident took place on head-on-collusion manner in midst of the road. All these facts are suffice to say that the learned Tribunal has erred in assessing the contributory negligence. Therefore, that finding is required to be interfered with and it is held that claimant as well as the original opponent No.1 are held equally liable in causing the road accident.
9. The learned Tribunal u/s 166 of the MV Act assessed the compensation to the tune of Rs.3,42,767/- and granted Rs.85,692/- after deducting 75% of the negligency of the claimant with rate of 7.5% interest from the date of filing the claim petition till realization.
10. For the foregoing reasons, present First Appeal is allowed in aforesaid terms.
10.1 The claimant would be entitled to half of the amount of Rs.3,42,767/-, which comes to Rs.1,71,383/- with 7.5% interest from the date of filing the claim petition till realization jointly and severally from the opponents.
10.2 The Insurance Company is directed to deposit the enhanced amount Rs.85,692/- with 7.5% p.a. interest from the date of claim petition till its realization before the concerned Tribunal, within a period of six weeks from the date of receipt of this order.
10.3 The Tribunal shall disburse the entire awarded amount of lying in the FDR and/or with the Tribunal, which came to the Page 8 of 9 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Feb 06 2025 Downloaded on : Fri Feb 07 01:47:31 IST 2025 NEUTRAL CITATION C/FA/3545/2012 ORDER DATED: 06/02/2025 undefined share of the claimant, with accrued interest thereon, if any, to the claimant, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure.
10.4 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.
10.5 Rest of the direction(s) of the Tribunal remain same.
10.6 Record and proceedings be sent back to the concerned Tribunal, forthwith.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 9 of 9 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Feb 06 2025 Downloaded on : Fri Feb 07 01:47:31 IST 2025